High Court Hears Animal Cruelty Video CaseThe U.S. Supreme Court heard arguments Tuesday on the Obama administration's efforts to reinstate a 10-year-old ban on the production and sale of graphic videos of animal cruelty. The case pits animal-rights groups and the government against free-speech groups and hunters organizations.

The U.S. Supreme Court heard arguments Tuesday on the Obama administration's efforts to reinstate a 10-year-old ban on the production and sale of graphic videos of animal cruelty. The case pits animal-rights groups and the government against free-speech groups and hunters organizations.

MELISSA BLOCK, Host:

From NPR News, this is ALL THINGS CONSIDERED. I'm Melissa Block.

MICHELE NORRIS, Host:

And I'm Michele Norris.

And Melissa, I've been out for four months now, working on a book project. It is good to be back here with you in Studio 2A.

BLOCK: And welcome back. It's great to have you with us.

And first up this hour, we're going to hear about a major free speech case argued today before the Supreme Court. At issue is whether the government can make it a crime to sell or possess any depiction of animal cruelty. This is intense stuff. The law is aimed specifically at a sort of sexual fetish video called crush videos, which involve crushing small animals to death.

NPR's Nina Totenberg reports on today's arguments.

NINA TOTENBERG: The law bans the possession or sale of photos, videos, or anything else that depicts the intentional maiming, torture or killing of an animal. Robert Stevens, the only person tried under the law, was not accused of making a crush video. He was convicted and sentenced to three years in prison for selling dogfighting videos. He didn't stage the fights or even film them. He pieced together films made by others, mainly in Japan, where dogfighting is legal. A federal appeals court threw out the conviction and struck down the law.

The appeals court said it was written so broadly that it could apply to everything from photos in Field and Stream magazine to hunting videos or even Hollywood movies like "Blazing Saddles," in which Alex Karras punches a horse.

(SOUNDBITE OF MOVIE "BLAZING SADDLES")

U: Hey, you can't park that animal over there. It's illegal.

(SOUNDBITE OF PUNCH)

TOTENBERG: Seeking to revive the animal cruelty law, the government appealed to the Supreme Court. The Obama administration contended that depictions of animal cruelty are not covered by the First Amendment guarantee of free speech, just as child pornography is not covered. Defending the statute today, Deputy Solicitor General Neal Katyal argued that Congress wrote its ban narrowly by creating exemptions from prosecution for depictions that have a serious educational, scientific, or artistic purpose. Chief Justice John Roberts bore in on those exemptions as evidence that prosecutions would depend on the views of the speaker.

NORRIS: What's the difference between this video and David Roma's documentary expose about pit bulls and dogfighting? That footage, she observed, was far more gruesome. Answer: The line will sometimes be difficult to draw, just as it is in child pornography. Justice Scalia: Child pornography is obscenity as far as I'm concerned, traditionally not covered by the First Amendment. This is something quite different. What if I'm an aficionado of bullfights? And I think they ennoble both beast and man. And I want to persuade people that we should have them? I would not be able to market videos showing people how exciting a bullfight is. Answer: Congress, in debating this law, talked about Spanish bullfighting as educational and artistic. Scalia, his voice rising, wait, wait, wait, any depiction of bullfighting is educational? Answer: Spanish bullfighting.

J: Look what you've done. You've taken these words, which are a little vague - serious educational, scientific, artistic. And you apply them not just to crush videos but to everything from dogfighting to fox hunting, to stuffing geese for pate de foie gras, and sometimes quail hunting. In some states, these things are legal, and in others they're not and people won't know what's legal and illegal. Justice Ginsburg: What's the difference between dogfighting and bullfighting, and I don't know where you put cockfighting. Justices Kennedy and Stevens asked about hunting with a bull and arrow noting that some depictions can be pretty gory. The government's Mr. Katyal replied that since hunting is legal in all 50 states, it's not covered by the law.

BLOCK: Here, "kill" is in the context of animal cruelty. Justice Scalia: Some people think killing an animal is cruel. Justice Alito: Could you ban a live broadcast of a gladiator contest like they had in ancient Rome. Answer: That would fall under the historical exemption of the law. Justice Scalia, incredulous: So, if you dress up like an ancient Roman, the whole thing is of historical interest?

BLOCK: What I'd like you to confront is that in child pornography cases, the very taking of the picture is the abuse of the child. Whereas here, Mr. Stevens was not even a promoter of the dogfight and the fight goes on whether he's there with a camera or not. Representing Mr. Stevens in court today, lawyer Patricia Mallet had an easier time of it, but not a cakewalk. Chief Justice Roberts and Justice Samuel Alito asked whether the court should worry about real-world problems instead of all the hypotheticals being bandied about.

BLOCK: Well, what about people who like human sacrifice? Suppose that's taking place someplace in the world. I mean, some people here would probably love to see it - live, pay per view, on the human sacrifice channel. Could Congress ban that? When Mallet dodged the question, Chief Justice Roberts and Justice Kennedy pressed for an answer. Finally she said, no. If Congress's only purpose is to shield your eyes for you, it can't do that.

NPR transcripts are created on a rush deadline by Verb8tm, Inc., an NPR contractor, and produced using a proprietary transcription process developed with NPR. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.

High Court Weighs Arguments In Dogfighting Case

October 6, 200912:16 PM ET

Deborah Tedford

Interactive: The 2009-10 Term

Animal-rights groups and free-speech advocates squared off in a major First Amendment battle Tuesday, as the U.S. Supreme Court prepared to decide whether videos of illegal dogfights are protected speech.

In oral arguments, the Obama administration asked the justices to reinstate the Federal Depiction of Animal Cruelty statute. The 10-year-old law prohibits the sale of videos and other depictions of animal cruelty in jurisdictions where the activities shown are illegal unless they have "serious value."

But Virginia filmmaker Robert Stevens argued in court filings that the law is too broad and violates his constitutional right to free speech. In 2005, Stevens was convicted of producing violent videos of dogfights and sentenced to 37 months in prison, but a federal appeals court found the law unconstitutional and overturned his conviction.

Related NPR Stories

At issue in U.S. v. Stevens is whether animal cruelty should be categorized as expression so reprehensible that it does not deserve First Amendment protection. That hasn't been done since the court's landmark 1982 ruling on child pornography.

During arguments Tuesday, several of the justices indicated that they may agree with Stevens.

"Why not do a simpler thing?" Justice Stephen Breyer asked a lawyer for the government. "Ask Congress to write a statute that actually aims at the frightful things they were trying to prohibit."

Stevens' lawyer, Patricia Millet, said Congress must be careful when restricting an individual's right to free speech, noting lawmakers should use "a scalpel, not a buzz saw."

Representing the government, Deputy Solicitor General Neal Katyal said Congress was careful to exempt hunting, educational, journalistic and other depictions from the law. Katyal urged the court not to wipe away the legislation in its entirety, but to allow courts to decide on a case-by-case basis whether videos are prohibited.

Justice Samuel Alito asked whether the court should focus on the potential prosecution of hunters, "or do we look at what's happening in the real world?"

Congress passed the law in 1999 with an eye toward limiting Internet sales of "crush videos," which show women crushing small animals with their bare feet or while wearing high-heeled shoes, according to Rep. Elton Gallegly (R-CA), who sponsored the anti-cruelty legislation.

"Other crimes often go hand in hand with animal fighting, including illegal gambling, drug trafficking and acts of human violence," Gallegly said in a statement on his Web site. "Virtually every arrest for animal cruelty has also led to additional arrests for at least one of these criminal activities. Moreover, gratuitous cruelty toward animals dehumanizes all of us and is simply wrong."

The case has generated a large amount of interest, in part because of the dogfighting conviction of pro football player Michael Vick in 2007. Vick served nearly two years for running an interstate dogfighting ring from his home in Virginia and was released in May.

Stevens, a pit bull enthusiast, has said he opposes animal cruelty. In court documents, he maintained he did not stage the dogfights and that the videos were intended to be instructional guides for pit bull owners.

He has garnered support from major news organizations and free-speech advocates, who argued that the law could discourage efforts to investigate such activities as seal clubbing or animal testing in the cosmetic and pharmaceutical industries if video or photographic images are obtained.

"Images of bullfighting in Spain, historical footage of cockfighting in Louisiana and documentaries about clubbing seals in Canada all could be prosecuted under the statute," the American Civil Liberties Union stated in a court brief supporting Stephens.

But animal-rights advocates and law enforcement agencies around the country argued that removing the profit motive from "blood sports" is a valuable tool for law enforcement authorities.

"The importance of the law in stopping animal cruelty cannot be overstated," said Sgt. David Hunt of the Franklin County (Ohio) Sheriff's Department. "It's a powerful tool to go after those who profit from illegal animal cruelty and promote criminal behavior."